Harris v. City of Cincinnati

Gorman, Presiding Judge,

concurring in part and dissenting in part.

I concur with the judgment of the majority, but disagree with the majority’s remand of the case to the trial court for further proceedings. I do so because there is no question, at least in my mind, that the trial court has in fact determined this case on its merits and nothing further remains for determination by the trial court.

The prevailing-wage law, set forth in R.C. 4115.03(C), applies to the Tower Place Project because it was constructed pursuant to a contract with a public authority. However, there is an even more basic reason. It is undisputed that the site preparation for the project was bid subject to the prevailing-wage law, but the balance of the project was not. The project cannot be both. When the parties acknowledged that the prevailing-wage law applied to the site-preparation work, the entire project was then subject to the prevailing-wage law.

The prevailing-wage law dates back to the Depression and was enacted to check the influx of cheap out-of-state labor and to establish a fair rate of wages on public projects for the construction trades. In

State ex rel. Evans v. Moore

(1982), 69 Ohio St.2d 88, 91 , 23 O.O.3d 145 , 147, 431 N.E.2d 311, 313 , the Supreme Court said:

“Above all else, the primary purpose of the prevailing wage law is to support the integrity of the collective bargaining process by preventing the undercutting of employee wages in the private construction sector.”

In

Phung v. Waste Management, Inc.

(1986), 23 Ohio St.3d 100, 103 , 23 OBR 260, 262, 491 N.E.2d 1114, 1117 , the Supreme Court observed:

“Furthermore, the Ohio Constitution delegates to the legislature the primary responsibility for protecting the welfare of employees. Sections 34 and 35 of Article II authorize the General Assembly to adopt laws regulating

*173

minimum wages, health and safety and hours of labor and to provide a plan for workers’ compensation. In the past, this court has deferred employment matters to the legislature.

State, ex rel. Clark, v. Brown

(1965), 1 Ohio St.2d 121 [ 30 O.O.2d 478 , 205 N.E.2d 377 ].”

In view of the legislature’s clear expression of intent contained in the prevailing-wage law, courts have a duty to enforce the law even in those situations where the parties resort to a strawman or various lease-back devices. To do otherwise is to frustrate the policy of the General Assembly. It is the obligation of this court to carry out the policy dictates of the General Assembly. We should not perniit parties to do through the back door what they cannot do through the front door. In this case the city not only held the title to the land, but it paid almost $6.5 million to the developer.

These policy considerations are valid and in line with

Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, supra.

There, the Supreme Court, in a four-to-three decision, held that hospital bonds were not public improvements because of the mechanism of R.C. Chapter 140 under which the legislature expressly granted public and non-profit hospital agencies authority to construct and upgrade facilities with tax-exempt obligations. Therefore, according to the

Episcopal Homes

majority, R.C. Chapter 140 hospital bonds are a separate legislative category for purposes of the prevailing-wage law.

2

After determining that the criteria of R.C. 4115.03(C) were met under the facts, the majority is now remanding this case to the trial court to relitigate this issue for the reason that the trial court entered judgment under Civ.R. 41(B). Because the parties agreed to present the issue of the application of the prevailing-wage law solely upon stipulated facts and documents, the trial court’s judgment was necessarily conclusive as to both the injunction and the declaratory judgment, or the order would not have been appealable. See

Gen. Acc. Ins. v. Ins. Co. of N. Am.

(1989), 44 Ohio St.3d 17 , 540 N.E.2d 266 . As a result of the majority’s findings on the merits this case should be remanded under App.R. 12(B) with instructions to the trial court to enter the judgment it should have entered, as a matter of law, and to order that the prevailing-wage law applies to the Tower Place Project.

2

. In the court’s decision to vacate the rehearing order in

Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations

(1991), 62 Ohio St.3d 1214, 1218-1221 , 582 N.E.2d 606, 608-611 , Justice Resnick’s dissent and Justice H. Brown’s concurrence may signal that the minority is now the majority, but the court did not address the issue again because of procedural grounds.